Signal Piracy — Illegal Distribution of Pay TV Signals

NLIPW Copyright Law Volume 2 Number 3

eDigest

(Illegal Distribution of Pay TV Signals)

January 20, 2014

“From a Subscriber to a Distributor”

Over the last few years, Pay TV providers in Nigeria — including Multichoice Nigeria, have had to contend with some consumers purchasing their decoders and Smart Cards for the purpose of rebroadcasting channels and programs commercially. These types of ‘consumers’ rely on the fact that the existing copyright framework in Nigeria has a number of shortcomings especially in view of unanticipated technological developments. They take comfort in the fact that they may not get caught or prosecuted for illegal distribution of broadcast signals or the penalty they may receive for broadcast piracy is insignificant to their profit margin.

It is certainly true that changes need to be made to the Copyright Act in Nigeria for the advancement of the rights of copyright holders but obtaining subscription and equipment from a TV provider that allows you to view programs as a consumer does not grant you the right to rebroadcast commercially. Courts in Nigeria have relied on the provisions of Section 20 of the Copyright Act, CAP C28 Laws of the Federation of Nigeria, 2004 to punish persons found guilty of illegal distribution of broadcast signals.

20. Criminal Liability

(1). Any person who-

…

(c) makes, causes to be made, or has in his possession, any plate, master tape, machine, equipment or contrivance for the purposes of making any infringing copy of any such work, is, unless he proves to the satisfaction of the court that he did not know and had no reason to believe that any such copy was an infringing copy of any such work, or that such plate, master tape, machine, equipment or contrivance was not for the purpose of making infringing copies of any such work, guilty of an offence under this Act and liable on conviction to a fine of an amount not exceeding N1,000 for every copy dealt with in contravention of this section or to a term of imprisonment not exceeding five years, or to both such fine and imprisonment.

A typical rebroadcasting scenario involves a consumer legally purchasing a Smart Card and decoder for single purpose non-commercial use. The consumer subsequently uses the Smart Card and other equipment to illegally transmit programs to others (for a fee) without the consent or authorization of the issuing TV provider. For example, in one case in Akwa Ibom State, Nigeria, the accused had illegally transmitted broadcast signals of Multichoice (DStv) to an estimated 500 houses at the cost of ₦5,000 for installation and a monthly subscription fee of ₦1,000.

“One day for the Copyright owner…!”

Between December 2012 and September 2013, the Nigerian Copyright Commission (NCC), which is the federal agency responsible for copyright matters in Nigeria, reported that it had seized illegal transmitting equipment worth over N42 million. The NCC also reported the arrest and prosecution of several suspects for broadcast piracy.

“The Best Defense is a Good Offense?”

Persons who are accused of illegal distribution of broadcast signals typically do not go down without a fight. Usually, they will put up some or all of the following arguments:

Legal Purchase of Equipment: Accused person will argue that their purchase of Smart Cards and other related equipment used in transmitting broadcast signals are legal and as such, it cannot be said that their possession of the equipment is illegal. In Ubi Bassey Eno v. Nigerian Copyright Commission, a similar argument was put forward before the court. Rejecting the argument, the Court of Appeal, per Jean Omokri J.C.A., stated:

The Appellant contended that they acquired Exhibits B, B1, C and C1 legally, therefore, the Appellant’s possession of the equipment cannot be said to be unlawful. The question here is not the possession of Exhibits B, B1, C and C1 per se by the Appellant. Section 18(1)(c) of the Copyright Act makes it an offence to possess the equipment for the purpose of making infringing copy. In the instant case, Exhibits B, B1, C and C1 were infact used for illegal rebroadcasting, which is a reproduction of a broadcast and since it is illegal, each rebroadcast is an infringing copy.

Lack of Intent and No Proof Beyond Reasonable Doubt: It is not unusual for person accused of illegal distribution of broadcast signals to rely on the legal requirement for the prosecution to prove beyond reasonable doubt that the purpose for which they were in possession, is to illegally broadcast or transmit programs without the consent and authorization of the copyright holder.

No Exclusive Right over Channels/No Copyright in the Material Distributed: Some accused persons will challenge the Pay TV providers’ right to withhold permission by arguing that the providers do not have the exclusive right over the channels/programs used in the rebroadcasting.

Test Transmission and Negotiations Before Final Agreements: In the Ubi Bassey Eno Case, it was argued that there was an on going negotiation between one of the accused parties and the plaintiff (TV provider) to enable the latter acquire rights or a license to broadcast the plaintiff’s programs and as such, what was done was not an illegal distribution but merely a test transmission before final agreements were reached. The court rejected this defense and line of argument stating:

The main plank of the Appellant’s defence is that they were test transmitting Multichoice signals before concluding the offer of Multichoice. The simple question is who gave the Appellant and his company licence to test transmit Multichoice signals? Nobody. Was the test transmission done with the knowledge, consent or authorization of Multichoice? The answer is No. It is important to note that the Appellant at page 31 said that: ‘The equipment were duly installed by Multichoice agents… We were only test transmitting the channels before taking the offer made to us by Multichoice…’. It is ridiculous for the Appellant to say that he was test- transmitting for a whole year and more….Per Jean Omokri J.C.A

Challenge the Technology used to prove transmission: Finally, accused persons will challenge the technology used to show that the signal from the Pay TV provider has been broadcast by them. The burden will be on the Pay TV provider to provide evidence to show that their rights have been infringed by a consumer who without consent became a distributor.

This article is intended to provide general information about the subject matter. Professional legal advice should be sought about specific circumstances.

Ufuoma is a Senior Editor and Director of Regulatory Policy at NLIPW. She assists clients in the protection of copyrights, trademarks and patents. She counsels clients regarding validity and infringement matters and has experience acting against the infringement of IP and addressing counterfeit issues. She holds a Masters degree (LL.M.) from Columbia Law School, New York and a law degree from the University of Nigeria (LL.B. Honors). She is admitted to practice law in Nigeria and in the State of New York. Ufuoma cut her teeth in the intellectual property practice groups of some of the largest law firms in Nigeria and has years of experience working with major non-profit organizations in New York. Email: uakpotaire@nlipw.com

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